VIJBHUKHANDAS KASHIDAS Vs. ISHVARDAS JAGJIVANDAS

JUDGEMENT

(1.) The plaintiffs brought this action to recover possession of the plaint lands, mesne profits and certain damages. The trial Court dismissed the suit on the ground that the insertion in the Kabulayat of 1902, signed by the defendants, about giving up possession of the land was made fraudulently and without the knowledge of the defendants, and that apart from the Kabulayat, the defendants were entitled to the presumption of the facts found under Section 83 of the Bombay Land Revenue Code that they were permanent tenants.

(2.) This decision was reversed in appeal, the learned Judge being of opinion that the defendants contention that the Kabulayat of 1902 was taken by the plaintiffs fraudulently was not established by the evidence. He was also of opinion that the defendants could not prove their possession of the suit land further back than 1802, and there was nothing on the record from which the Court could presume that they had been in possession prior to 1862. In any event, the Court was satisfied that the fact that defendants were in possession in 1854 had not been established. It would follow then that even without the Kabulayat, it would be rather difficult for the defendants to ask the Court to give them the benefit of Section 83, and hold that they were permanent tenants. The execution of the Kabulayat of 1902, in our opinion, must be taken as an admission by the defendants that they were not permanent tenants, but tenants bound to give up possession according to the terms of the document.

(3.) No doubt, when it has been proved that a tenant has been in occupation of certain land for so long that one cannot ascertain the commencement of the tenancy, the mere fact that during the currency of his holding he has signed a Kabulayat which purports to be in terms an agreement for an annual tenancy may not be sufficient to displace the advantage he has obtained from his long holding, if he continues in possession for many years after he had signed the Kabulayat, on the same rent. But each case of this class must stand entirely on its own facts. At first, the tenant claiming to hold as a permanent tenant must establish the facts which would entitle him to the presumption of Section 83. But that can be rebutted by the landlord by the production of a Kabulayat. Again the effect of the Kabulayat can be destroyed by further evidence on the part of the tenant. The fact of the signing of the Kabulayat as merely an isolated instance in the midst of a long holding at the same rent, will not necessarily prevent the tenant from succeeding.